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HQ 111581


July 25, 1991

VES 7-03 CO:R:IT:C 111581 BEW

CATEGORY: CARRIER

Mr. Tom W. Rueter
Vice President/General Manager
North Star Maritime Agencies
Post Office Box 101019
Anchorage, Alaska 99510

RE: Application of the coastwise laws (46 U.S.C. App. 883) to the taking by a foreign-flag vessel of frozen fish products from a U.S. processing vessel in the territorial waters of the U.S. and the landing of the same in American Samoa.

Dear Mr. Rueter:

This is in reference to your letter of March 14, 1991, in which you request a ruling as to whether American Samoa is considered to be embraced with the coastwise laws of the United States.

FACTS:

You state that North Star Maritime Agencies has been a steamship agent for 40 years in Alaska, handling various foreign principals' vessels during their calls in Alaskan Waters. Specifically you state that Taiyo Gyogyo Co. Ltd. charters and/or operates numerous foreign-flag reefer cargo vessels as common carriers between points throughout the world. You state that one aspect of their business is to transport frozen fish products which are received from U.S.-flag processing vessels, anchored in the U.S. territorial waters. It appears from your letter that the loading of the fish products takes place during the outbound voyage of the vessel. You state that all products are slated for discharge at foreign ports.

You ask the following questions:

For the purpose of Coastwise Laws (Jones Act) and other regulations that may apply, is
American Samoa considered to be embraced within the coastwise laws of the United
States. Can Foreign flag vessels load cargoes within the U.S. territorial waters of the Alaska region for discharge at ports in American Samoa?

ISSUE:

Whether the coastwise laws are applicable to commerce between the islands of American Samoa and other ports of the United States?

LAW AND ANALYSIS:

Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and 883, and 46 U.S.C. 12106 and 12110) prohibit the transportation of merchandise or passengers between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in and documented under the laws of the United States, and owned by persons who are citizens of the United States.

The coastwise law pertaining to the transportation of merchandise, section 27 of the Act of June 5, 1920, as amended (41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act), provides that:

No merchandise shall be transported by water, or by land and water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as determined by the Secretary of the Treasury, or the actual cost of the transportation, whichever is greater, to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons so transporting or causing said merchandise to be transported), between points in the United States ... embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States ....

In interpreting the coastwise laws, Customs has ruled that a point in United States territorial waters is considered a point embraced within the coastwise laws. The coastwise laws generally apply to points in the territorial sea, defined as the belt, three (3) nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ.

"Merchandise" is defined in section 1401(c) of title 19, United States Code, to include goods, wares, and chattels of every description, and includes fish, fish products, and fish packing materials that are assembled into packages containing fish. Section 883 specifically provides that, for purposes of its provisions, "merchandise" includes valueless material (Pub.L. 100-329; 102 Stat. 588). The transportation of valueless material, whether or not it has commercial value, from a point or place in the United States or point or place on the high seas within the Exclusive Economic Zone (EEZ) as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within that EEZ would also be prohibited under the provisions of section 883.

Under the foregoing, frozen fish products are considered merchandise for purposes of section 883.

Title 48, United States Code, section 1664 (48 U.S.C. 1664) provides:

The provisions of law of the United States restricting to vessels of the United States the transportation of passengers and merchandise directly or indirectly from any port of the United States to another port of the United States shall not be applicable to commerce between1 the islands of American Samoa or between those islands and other ports under the jurisdiction of the United States.

(1 So in original. Probably should be between).

A review of the Joint Resolution to harmonize the treaties and statutes of the United States with reference to American Samoa reveals that Article 3 of the Convention relating to the Samoan Islands, signed by the United States, Great Britain, and Germany in 1899 states:

It is understood and agreed that each of the three signatory powers shall continue to enjoy, in respect to commerce and commercial vessels, in all of the islands of the Samoan group privileges and conditions equal to those enjoyed by the sovereign powers, in all ports which may be open to the commerce of either of them.

On this basis it was resolved under the Joint Resolution that the coastwise shipping laws of the United States are inapplicable to American Samoa (48 U.S.C. 1664, June 14, 1934, c.

523, 48 Stat. 963). Headquarters rulings issued prior to 1983 held that the coastwise laws do not apply to American Samoa.

Revised Statute 4132 as amended (46 U.S.C. 11) provided that a foreign built, United States-flag vessel which normally would be proscribed from engaging in the coastwise trade, may engage in trade between the United States mainland and American Samoa. Section 11 was repealed by Public Law 96-594, Title 1, section 127, Dec. 24, 1980, 94 Stat. 3459. Section 110(b) of Pub. L. 96-594 (46 U.S.C. 12105(b) provided as follows:

A vessel for which a registry is issued may be employed in foreign trade or trade with Guam, American Samoa, Wake, Midway or Kingman Reef.

Section 12105(b) was amended in 1989 by adding the word "endorsement" after the word "registry".

Customs has long held that the coastwise laws are inapplicable to American Samoa (48 U.S.C. 1664). We have reviewed the legislative history relating to the above stated statutes, i.e., 48 U.S.C. 1664 and 46 U.S.C. 12105(b), and we do not find any provisions in which Congress intended to repeal 48 U.S.C. 1664. It appears that the purpose of enacting section 12105(b) is three-fold; to revise, consolidate and to enact into positive law the existing maritime laws, to entitle certain United States citizens or nationals domiciled in Guam, American Samoa or the Northern Mariana Islands to register vessels under United States shipping laws, and to allow citizens of American Samoa, Guam, and the Northern Mariana Islands to use foreign- built vessels in the coastwise trade and fishing within the territorial seas adjacent to American Samoa, Guam, and the Northern Mariana Islands.

Sutherland Stat. Const S 23.09 and the cases cited therein, held that:

The legislature is presumed to intend to achieve a consistent body of law. In accord with this principle subsequent legislation is not presumed to repeal the existing law in the absence of expressed intent. Conversely, where a consistent body of laws cannot be maintained without the abrogation of a previous law, a repeal by implication of previous legislation or of the common law is readily found in the terms of a later enactment.

There is nothing in the enactment of section 12105(b) that indicates that section 1664 is repealed. Courts are reluctant to find repeal by implication even when the later statute is not entirely harmonious with the earlier one. A recent case, United States v. Barrett, 837 F2d 933 (CA10, 1988) held that if two statutes conflict somewhat, the court must if possible read them so as to give effect to both, unless the text or legislative history of the later statute shows that Congress intended to repeal the earlier one and simply failed to do so expressly.

Under the foregoing, we find that the coastwise laws are inapplicable to American Samoa.

The Act of September 2, 1950, as amended (Chapter 842, 64 Stat. 577; 46 U.S.C. App. 251(a), often called the Nicholson Act) provides:

Except as otherwise provided by treaty or convention to which the United States is a party, no foreign-flag vessel shall, whether documented as a cargo vessel or otherwise, land in a port of the United States its catch of fish taken on board such vessels on the high seas or fish products processed therefrom, or any fish or fish products taken on board such vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products.

Under the Nicholson Act a foreign-flag vessel may not land in a port of the United States its catch of fish taken on board such vessel on the high seas. Customs has held that the Nicholson Act does not apply to prohibit a foreign- flag vessel from landing in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands (CNMI) fish or fish products it has caught or taken on board on the high seas.

You should also be aware that under 46 U.S.C. 12108 and 12101 a vessel not documented for the fisheries is prohibited from transporting the fish (except in foreign commerce) within the United States EEZ unless it has received a permit to do so under the Magnuson Fishery Conservation and Management Act (MFCMA) (16 U.S.C. 1801 et seq.). The subject foreign vessels are precluded from taking aboard any marine products whose destination, immediately or otherwise, is a port subject to the coastwise laws.

Under the MFCMA, foreign-flag vessels may operate within the EEZ under permits issued by the National Oceanic and Atmospheric Administration (NOAA) pursuant to International Fishery Agreements negotiated under the MFCMA. The MFCMA excludes from its coverage "highly migratory species", which include tuna.

While Congress specifically vested in the NOAA the responsibility for administering the MFCMA, Customs has been given certain responsibility for regulating vessels in the fishing trades (see Reorganization Plan No. 3 of 1946, 60 Stat. 1097).

HOLDING:

The coastwise laws are inapplicable to the transportation of passengers or merchandise directly or indirectly between any port of the United States and the islands of American Samoa or between the islands of American Samoa.

Sincerely,

B. James Fritz

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